By Sasha Kadish
Answer: Yes, according to the judgment of R.C v H.S.C (A5033/22)  ZAGPJHC 219 (14 March 2023).
In this case, the Court found that it can grant joint guardianship for a child without removing the existing guardian. The court can make decisions in the best interests of a child as the upper guardian of all children.
Section 23 of the Children’s Act allows any major person to apply for co-guardianship of a child, even if they do not have a biological link to the child, as long as it is in the child’s best interests. However, the court must appoint a clinical psychologist to conduct an assessment and provide a recommendation to determine if the appointment of a co-guardian is in the minor child’s best interests.
The facts of the case were as follows: the parties met on Tinder, and the Respondent was pregnant with another man’s child, her second child. The biological father was not involved in the child’s life. When the child was about one year old, the applicant and respondent moved in together, and the respondent took on the role of father to the two children for the next two and a half years. When the couple broke up, they had an informal contact arrangement for the respondent to see the children, with whom he was very close. However, after nine months, the respondent stopped allowing the applicant to see the children.
The court initially found that the applicant had no locus standi because he had failed to show the non-suitability of the existing guardian, which is a jurisdictional fact needed for the court to entertain such an application. However, the appeal court overruled this finding and held that a co-guardian can be appointed despite the non-suitability of the current guardian if it is in the child’s best interests to do so.
In conclusion, this recent case sets a precedent that a third-party/non-parent can apply for guardianship of a minor child. The best interests of the child will always be the overriding factor in determining such a case.